Agenda - Planning Commission - 11/06/2014

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October 10, 2014 l Volume 8 I Issue 19 Zoning Bulletin The district court granted summary judgment in favor of the City. The district court found that the City Council resolution satisfied the "in writing" requirement because the motion and meeting minutes reflected the action taken and "contained an explanation of the reasons sufficient to allow the Court to evaluate the evi- dence in the record that supports those reasons." Viaero appealed. Viaero urged the United States Court of Appeals, Eighth Circuit to adopt the majority rule —followed by the First, Seventh, and Ninth Circuits, interpreting the § 332 of the TCA as requiring that a decision: "(1) be separate from the written record; and (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a review- ing court to evaluate the evidence in the record that supports those reasons." The City urged the Eighth Circuit to adopt the minority rule, adopted by the Sixth Circuit, interpreting § 332 of the TCA as not requiring that the decision and record be separate writings as long as the record permits the reviewing court to "focus with precision on the action that was taken and the reasons supporting such action." DECISION: Judgment of district court affirmed. The United States Court of Appeals, Eighth Circuit, chose to adopt neither the majority or minority rules interpreting § 332 of the TCA, as urged by the parties. Instead, the Eighth Circuit concluded that the approach adopted by the Fourth and Eleventh Circuits was the "better rule." The Eighth Circuit adopted that rule here, holding that the "in writing" requirement of § 332 of the TCA: (1) does not require that a denial of a personal wireless service facility and the "written rec- ord" be separate writings; and (2) does not require that the written denial state the reasons for the denial. In so holding, the Eighth Circuit agreed with the Eleventh Circuit that the plain language of the statute required only that a decision denying a personal wireless service facility be "in writing;" it did not require the decision be "in a separate writing." The Eighth Circuit also agreed with the Fourth Circuit that § 332's "simple requirement" that a decision be "in writing" "cannot reasonably be in- flated into a requirement of a `statement of . . . findings and conclusions, and the reasons or basis therefor." The court agreed that the "substantial evidence" requirement not the "in writing" clause —ensured that the court would receive enough information to allow for effective judicial review. Here, the parties agreed that the City Council's decision was written; the City Council's written meeting minutes memorialized its formal resolution denying Viaero's CUP application. The court found that the TCA required no more than that; here the City's denial of Viaero's CUP application satisfied the TCA's "in writing" requirement. The court also concluded that the City Council's denial was supported by "substantial evidence," as required by the TCA. The court held that the "substantial evidence" requirement meant there had to be "relevant evidence as a reasonable mind might accept as adequate to support a conclusion;" it did not require a preponderance of the evidence. Here, the court found that the testimony of a dozen residents that the proposed tower would not be harmonious with the neighborhood was "enough for a `reasonable mind' to accept as `adequate to sup- port a conclusion' that the proposed tower would be out of place in the neighborhood." Thus, the court concluded 'that the City Council's denial of Viaero's CUP application was supported by substantial evidence, as required by the TCA. 6 © 2014 Thomson Reuters